INCORPORATION; AUTHORIZATION; CAPITALIZATION. (a) Purchaser is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. Purchaser has all requisite corporate power and authority to own its respective properties and assets and to carry on its business as it is now being conducted. (b) Assuming that the representations and warranties of the Company set forth in Section 4.1(e) are correct (and subject to receipt of board approval as described below in this Section 5.1(b)), Purchaser has full power and authority (corporate or otherwise) to execute, deliver and perform this Agreement and all other agreements and instruments being executed, or contemplated to be executed by it pursuant hereto or in connection herewith (collectively, together with this Agreement the "Purchaser Transaction Documents"; the Company Transaction Documents and the Purchaser Transaction Documents may be referred to herein collectively as the "Transaction Documents") the other Transaction Documents to which Purchaser is a party. The execution, delivery and performance by Purchaser of this Agreement and the other Purchaser Transaction Documents have been duly authorized by all necessary action (corporate or 14 14 otherwise) on the part of Purchaser (other than the approval of such matters by the board of directors of Purchaser). This Agreement has been duly executed and delivered by Purchaser and the other Purchaser Transaction Documents contemplated hereby to be executed and delivered by Purchaser at the Closing will, as of the Closing Date, have been duly executed and delivered by the Purchaser. This Agreement constitutes, and each other Purchaser Transaction Document, when executed and delivered by Purchaser, will constitute, the legal, valid and binding obligation of Purchaser, enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable laws relating to bankruptcy, insolvency, fraudulent conveyance, reorganization or affecting creditors' rights generally and except to the extent that injunctive or other equitable relief is within the discretion of a court. (c) The execution, delivery, and performance by Purchaser of this Agreement, and the other Purchaser Transaction Documents, and the consummation by Purchaser of the transactions contemplated hereby and thereby, do not and will not, (a) violate, conflict with or result in the breach of any provision of the certificate of incorporation or by-laws of Purchaser or (b) violate, conflict with, result in a breach of, or constitute a default (or an event which would, with the passage of time or the giving of notice or both, constitute a default) under, require any consent under, or result in or permit the termination, amendment, modification, acceleration, suspension, revocation or cancellation of, (i) any indenture, mortgage, loan or credit agreement, license, instrument, lease, contract, plan, permit or other agreement or commitment, oral or written, to which Purchaser is a party, or (ii) any judgment, injunction, writ, award, decree, restriction, ruling, or order of any court, arbitrator or Governmental Entity or any applicable constitution, or Law, to which Purchaser is subject, except for such violations, conflicts, breaches, defaults, failures to obtain consents, terminations, modifications, accelerations, revocations and cancellations as would not individually or in the aggregate have a material adverse effect on Purchaser's ability to perform its obligations under the Purchaser Transaction Documents. (d) The shares of StarMedia Common Stock delivered to the Company in accordance with this Agreement, when so delivered in accordance with the terms of this Agreement, will have been duly authorized, validly issued, fully paid and non-assessable, and will not have been issued in violation of any preemptive rights or any U.S. federal or state securities laws.
Appears in 1 contract
Samples: Asset Purchase Agreement (J P Morgan Partners Sbic LLC)
INCORPORATION; AUTHORIZATION; CAPITALIZATION. (a) Purchaser is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. Purchaser has all requisite corporate power and authority to own its respective properties and assets and to carry on its business as it is now being conducted.
(b) Assuming that the representations and warranties of the Company set forth in Section 4.1(e4.1(f) are correct (and subject to receipt of board approval as described below in this Section 5.1(b)), Purchaser has full power and authority (corporate or otherwise) to execute, deliver and perform this Agreement and all other agreements and instruments being executed, or contemplated to be executed by it pursuant hereto or in connection herewith (collectively, together with this Agreement the "Purchaser Transaction DocumentsPURCHASER TRANSACTION DOCUMENTS"; the Company Transaction Documents and the Purchaser Transaction Documents may be referred to herein collectively as the "Transaction DocumentsTRANSACTION DOCUMENTS") the other Transaction Documents to which Purchaser is a party. The execution, delivery and performance by Purchaser of this Agreement and the other Purchaser Transaction Documents have been duly authorized by all necessary action (corporate or 14 14 otherwise) on the part of Purchaser (other than the approval of such matters by the board of directors of Purchaser). This Agreement has been duly executed and delivered by Purchaser and the other Purchaser Transaction Documents contemplated hereby to be executed and delivered by Purchaser at the Closing will, as of the Closing Date, have been duly executed and delivered by the Purchaser. This Agreement constitutes, and each other Purchaser Transaction Document, when executed and delivered by Purchaser, will constitute, the legal, valid and binding obligation of Purchaser, enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable laws relating to bankruptcy, insolvency, fraudulent conveyance, reorganization or affecting creditors' rights generally and except to the extent that injunctive or other equitable relief is within the discretion of a court.
(c) The execution, delivery, and performance by Purchaser of this Agreement, and the other Purchaser Transaction Documents, and the consummation by Purchaser of the transactions contemplated hereby and thereby, do not and will not, (a) violate, conflict with or result in the breach of any provision of the certificate of incorporation or by-laws of Purchaser or (b) violate, conflict with, result in a breach of, or constitute a default (or an event which would, with the passage of time or the giving of notice or both, constitute a default) under, require any consent under, or result in or permit the termination, amendment, modification, acceleration, suspension, revocation or cancellation of, (i) any indenture, mortgage, loan or credit agreement, license, instrument, lease, contract, plan, permit or other agreement or commitment, oral or written, to which Purchaser is a party, or (ii) any judgment, injunction, writ, award, decree, restriction, ruling, or order of any court, arbitrator or Governmental Entity or any applicable constitution, or Law, to which Purchaser is subject, except for such violations, conflicts, breaches, defaults, failures to obtain consents, terminations, modifications, accelerations, revocations and cancellations as would not individually or in the aggregate have a material adverse effect on Purchaser's ability to perform its obligations under the Purchaser Transaction Documents.
(d) The shares of StarMedia Common Capital Stock delivered to the Company in accordance with this Agreement, when so delivered in accordance with the terms of this Agreement, will have been duly authorized, validly issued, fully paid and non-assessable, and will not have been issued in violation of any preemptive rights or any U.S. federal or state securities laws.
Appears in 1 contract
INCORPORATION; AUTHORIZATION; CAPITALIZATION. (a) Purchaser The Company is a corporation duly incorporatedorganized, validly existing and in good standing under the laws of the Territory of the British Virgin Islands. The Company (i) has all requisite corporate power and authority to own the Acquired Assets owned by it and to carry on its business as it is now being conducted and (ii) is in good standing and is duly qualified to transact business, and is in good standing (to the extent such concept exists), in each jurisdiction in which the nature of the Assets owned or leased by it or the conduct of its business requires it to be so qualified. SWV is a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareFlorida. Purchaser SWV (i) has all requisite corporate power and authority to own its respective properties and assets the Acquired Assets owned by it and to carry on its business as it is now being conductedconducted and (ii) is in good standing and is duly qualified to transact business, and is in good standing (to the extent such concept exists), in each jurisdiction in which the nature of the Assets owned or leased by it or the conduct of its business requires it to be so qualified. The Company has delivered to Purchaser prior to the date hereof true and correct copies of its Memorandum of Association and Articles of Association (or similar organizational documents) (collectively, the "COMPANY ORGANIZATIONAL DOCUMENTS") and of the certificate of incorporation and by-laws of SWV (the "SWV ORGANIZATIONAL DOCUMENTS"). The Company has no Subsidiary other than the Specified Subsidiaries and SWV. Except as set forth on Section 4.1(a) of the Disclosure Letter, the Company has no investments in, or joint venture arrangements with, any other Person (other than the Specified Subsidiaries and SWV). SWV is a wholly-owned subsidiary of the Company.
(b) Assuming that Each Specified Subsidiary is a corporation duly organized, validly existing and in good standing under the representations laws of its jurisdiction of organization and warranties has the requisite corporate power and authority to own its assets and to carry on its business as now being conducted. Each Specified Subsidiary is duly qualified to transact business, and is in good standing (to the extent such concept exists), in each jurisdiction in which the nature of the Assets owned or leased by it or the conduct of its requires it to be so qualified. The Company has delivered to Purchaser prior to the date hereof true and correct copies of the governing instruments of each Specified Subsidiary. Each Specified Subsidiary is a wholly-owned Subsidiary of the Company (and EnTuMovil de Venezuela C.A. is a wholly-owned Subsidiary of In2Movil International Corp.), except that CycleLogic Do Brasil, Ltda. is owned partially by the Company's Brazilian legal counsel, as identified in Section 4.1(b) of the Disclosure Letter. The authorized and issued capital stock of each Specified Subsidiary is set forth in Section 4.1(e4.1(b) are correct of the Disclosure Letter. All of the issued and outstanding capital stock of each Specified Subsidiary has been validly authorized and issued, is fully paid and nonassessable and has not been issued in violation of any preemptive rights or of any Law. There is no security, option, warrant, right, call, subscription, agreement, commitment or understanding of any nature whatsoever, fixed or contingent, that directly or indirectly (i) calls for the issuance, sale, pledge or other disposition of any shares of capital stock of any Specified Subsidiary or any securities convertible into, or other rights to acquire, any shares of capital stock of any Specified Subsidiary, (ii) obligates the Company or any Specified Subsidiary to grant, offer or enter into any of the foregoing or (iii) relates to the voting or control of such capital stock, securities or rights.
(c) Section 4.1(c) of the Disclosure Letter describes, separately with respect to the Company, SWV and subject to receipt each of board approval the Specified Subsidiaries, the countries in which each such Person owns any Assets or otherwise conducts any business, and a summary of the nature and location of the Assets that it owns, and of the business that it conducts, in each such country. Except as described below in this Section 5.1(b))4.1(c) of the Disclosure Letter, Purchaser neither SWV nor any of the Specified Subsidiaries owns any Assets.
(d) Each of the Company and SWV has full power and authority (corporate or otherwise) to execute, deliver and perform this Agreement, the Escrow Agreement and all other agreements and instruments being executed, or contemplated to be executed executed, by it pursuant hereto or in connection herewith (collectively, together with this Agreement and the Escrow Agreement, the "Purchaser Transaction DocumentsCOMPANY TRANSACTION DOCUMENTS"; the Company Transaction Documents and the Purchaser Transaction Documents may be referred to herein collectively as the "Transaction Documents") the other Transaction Documents to which Purchaser is a party). The execution, delivery and performance by Purchaser the Company or SWV, as applicable of this Agreement and the other Purchaser Company Transaction Documents have been duly authorized by all necessary action (corporate or 14 14 otherwise) on the part of Purchaser (other than the approval of such matters by the board of directors of Purchaser)Company, SWV and their respective shareholders. This Agreement has been duly executed and delivered by Purchaser the Company and the other Purchaser Company Transaction Documents contemplated hereby to be executed and delivered by Purchaser the Company or SWV at the Closing will, as of the Closing Date, have been duly executed and delivered by the PurchaserCompany or SWV, as applicable. This Agreement constitutes, and each other Purchaser Company Transaction Document, when executed and delivered by Purchaserthe Company or SWV, as applicable, will constitute, the legal, valid and binding obligation of Purchaserthe Company or SWV, as applicable, enforceable against it the Company or SWV, as applicable, in accordance with its terms, except as such enforceability may be limited by applicable laws relating to bankruptcy, insolvency, fraudulent conveyance, reorganization or affecting creditors' rights generally and except to the extent that injunctive or other equitable relief is within the discretion of a court.
(ce) The execution, delivery, and performance by Purchaser the Company or SWV, as applicable, of this Agreement, Agreement and the other Purchaser Company Transaction Documents, and the consummation by Purchaser the Company or SWV, as applicable, of the transactions contemplated hereby and thereby, and the execution, delivery and performance by the Key Employees/Stockholders of the Inducement Agreements and the Key Employees/Stockholders Employment Agreements, do not and will not, not (ai) violate, conflict with or result in the breach of any provision of the certificate of incorporation Company Organizational Documents or by-laws of Purchaser the SWV Organizational Documents or (bii) except as described in Section 4.1(e) of the Disclosure Letter, violate, conflict with, result in a breach of, or constitute a default (or an event which would, with the passage of time or the giving of notice or both, constitute a default) under, require any consent under, or result in or permit the termination, amendment, modification, acceleration, suspension, revocation or cancellation of, or result in the creation or imposition of any Lien of any nature whatsoever upon, any of the Acquired Assets or give to others any interests or rights therein under, (ix) any indentureSpecified Contract, mortgage, loan any other Contract or credit agreement, license, instrument, lease, contract, plan, permit or other agreement or commitment, oral or written, to which Purchaser is a partyany Company Approval, or (iiy) any judgment, injunction, writ, award, decree, restriction, ruling, or order of any court, arbitrator or Governmental Entity or any applicable constitution, or Law, to which Purchaser the Company, SWV or any of the Specified Subsidiaries is subjectsubject or which is applicable to any of the Acquired Assets (any of the foregoing, except for such violations, conflicts, breaches, defaults, failures to obtain consents, terminations, modifications, accelerations, revocations and cancellations as would not individually or in the aggregate have a material adverse effect on Purchaser's ability to perform its obligations under the Purchaser Transaction Documents"DEFAULT/MODIFICATION RIGHT").
(df) Section 4.1(f) of the Disclosure Letter contains a complete and correct list of the record and beneficial ownership of all outstanding capital stock of the Company. The shares of StarMedia Common Stock delivered to Person within which the Company in accordance with this Agreement, when so delivered in accordance with is included within meaning of section 801.1 of the terms of this Agreement, will have been duly authorized, validly issued, fully paid and non-assessableHSR Act rules does not have, and as of the Closing Date will not have been issued in violation have, "total assets" (within the meaning of, and as measured under, the HSR Act) of any preemptive rights $10,000,000 or any U.S. federal more or state securities lawsannual net sales (within the meaning of, and as measured under, the HSR Act) for its last fiscal year of $10,000,000 or more.
Appears in 1 contract
INCORPORATION; AUTHORIZATION; CAPITALIZATION. (a) Purchaser The Company is a corporation duly incorporatedorganized, validly existing and in good standing under the laws of the State of DelawareCalifornia. Purchaser The Company (i) has all requisite corporate power and authority to own its respective properties and assets and to carry on its business as it is now being conductedconducted and (ii) is in good standing and is duly qualified to transact business in each jurisdiction in which the nature of property owned or leased by it or the conduct of its business requires it to be so qualified, except where the failure to be in good standing or to be duly qualified to transact business would not, individually or in the aggregate, have a Material Adverse Effect on the Company. The Company has previously delivered to Parent true and correct copies of the articles of incorporation and by-laws of the Company. The Company has no Subsidiaries. Except as set forth on Schedule 4.1(a), the Company has no investments in, or joint venture arrangements with, any other Person.
(b) Assuming that the representations and warranties of the The Company set forth in Section 4.1(e) are correct (and subject to receipt of board approval as described below in this Section 5.1(b)), Purchaser has full power and authority (corporate or otherwise) to execute, deliver and perform this Plan of Merger, the Merger Agreement and all other agreements and instruments being executed, or contemplated to be executed by it pursuant hereto or in connection herewith and therewith (collectively, together with this Agreement the "Purchaser Transaction DocumentsTRANSACTION DOCUMENTS"; ). Subject only to the Company Transaction Documents and receipt of the Purchaser Transaction Documents may be requisite approval of the Company's shareholders referred to herein collectively as the "Transaction Documents"in Section 8.2 hereof, (i) the other Transaction Documents to which Purchaser is a party. The execution, delivery and performance by Purchaser the Company of this Agreement and the other Purchaser Transaction Documents have Plan of Merger has been duly authorized by all necessary action (corporate or 14 14 otherwise) on the part of Purchaser the Company, and (ii) as of the Closing Date, the Merger Agreement and the other than Transaction Documents to which the approval Company is a party will be duly authorized by all necessary action (corporate or otherwise) on the part of such matters by the board of directors of Purchaser)Company. This Agreement Plan of Merger has been duly executed and delivered by Purchaser and the other Purchaser Transaction Documents contemplated hereby to be executed and delivered by Purchaser at the Closing willCompany, and, as of the Closing Date, have been the Merger Agreement and the other Transaction Documents to which the Company is a party will be duly executed and delivered by the PurchaserCompany. This Agreement constitutesAssuming due authorization, execution and each other Purchaser Transaction Documentdelivery by Parent and Newco of this Plan of Merger, when executed and delivered by Purchaser, will constitute, the this Plan of Merger is a legal, valid and binding obligation of Purchaserthe Company, enforceable against it the Company in accordance with its terms, except as such enforceability may be limited by applicable laws relating to bankruptcy, insolvency, fraudulent conveyance, reorganization or affecting creditors' rights generally and except to the extent that injunctive or other equitable relief is within the discretion of a court. As of the Closing Date, assuming due authorization, execution and delivery by Parent of this Plan of Merger and the receipt of the requisite approval of the Company's shareholders referred to in Section 8.2 hereof, the Merger Agreement and the other Transaction Documents to which the Company is a party will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as such enforceability may be limited by applicable laws relating to bankruptcy, insolvency, fraudulent conveyance, reorganization or affecting creditors' rights generally and except to the extent that injunctive or other equitable relief is within the discretion of a court.
(c) The execution, delivery, and performance by Purchaser the Company of this AgreementPlan of Merger, the Merger Agreement and the other Purchaser Transaction DocumentsDocuments to which it is a party does not, and the consummation by Purchaser the Company of the transactions contemplated hereby and thereby, do not and will not, (a) upon receipt of the requisite approval of the Company's shareholders referred to in Section 8.2, violate, conflict with or result in the breach of any provision of the certificate Articles of incorporation Incorporation or by-laws of Purchaser the Company or (b) violate, conflict with, result in a breach of, or constitute a default (or an event which would, with the passage of time or the giving of notice or both, constitute a default) under, require any consent under, or result in or permit the termination, amendment, modification, acceleration, suspensionsuspensions, revocation or cancellation of, or result in the creation or imposition of any Lien of any nature whatsoever upon any of the assets of the Company or give to others any interests or rights therein under (i) any indenture, mortgage, loan or credit agreement, license, instrument, lease, contract, plan, permit or other agreement or commitment, oral or written, to which Purchaser is a partyContract, or (ii) any judgment, injunction, writ, award, decree, restriction, ruling, or order of any court, arbitrator or other Governmental Entity or any applicable constitution, constitution or Law, to which Purchaser the Company is subject, except for such violations, conflicts, breaches, defaults, failures subject or which is applicable to obtain consents, terminations, modifications, accelerations, revocations and cancellations as would not individually or in the aggregate have a material adverse effect on PurchaserCompany's ability to perform its obligations under the Purchaser Transaction Documentsassets.
(d) The authorized capital stock of the Company consists of (i) 10,000,000 shares of StarMedia Webcast Common Stock delivered to Stock, of which 7,237,500 shares are issued and outstanding, and (ii) 560,000 shares of Series A preferred stock, no par value, of the Company in accordance with this Agreement(the "PREFERRED STOCK"), when so delivered in accordance with of which 541,650 shares are issued and outstanding. All of the terms outstanding shares of this Agreement, will capital stock of the Company have been duly authorized, validly issued, are fully paid and non-assessable, and will have not have been issued in violation of any preemptive rights created by statute, regulation, the articles of incorporation or bylaws of the Company or any U.S. agreement to which the Company is a party or by which it is bound, or in violation of any federal or state securities laws. The Company has reserved 541,650 shares of Webcast Common Stock for issuance upon conversion of the Preferred Stock and 1,100,000 shares of Webcast Common Stock under the Company's 1999 Stock Option Plan (the "OPTION PLAN") for employees, officers, directors and consultants of the Company as may be determined and approved by the Company's Board of Directors from time to time. Except as disclosed in this Section 4.1(d) and in Schedule 4.1(d) and for the transactions contemplated by this Plan of Merger, there is no security, option, warrant, right (including preemptive rights), put, call, subscription, agreement, commitment, understanding or claim of any nature whatsoever, fixed or contingent, to which the Company is a party or by which it is bound that directly or indirectly (i) calls for the issuance, sale, pledge, delivery or other disposition of any securities of the Company or any securities convertible into, or other rights to acquire, any securities of the Company, (ii) relates to the voting or control of any securities of the Company or (iii) obligates the Company or any of its Affiliates to grant, offer or enter into any of the foregoing.
(e) Schedule 4.1(e) contains a complete and correct list of the record and beneficial ownership of Webcast Common Stock and Preferred Stock by each shareholder of the Company designating each officer and director of the Company and the current mailing address of each such shareholder.
Appears in 1 contract
INCORPORATION; AUTHORIZATION; CAPITALIZATION. (a) Purchaser The Company is a corporation duly incorporatedorganized, validly existing and in good standing under the laws of the State of Delaware. Purchaser The Company (i) has all requisite corporate power and authority to own its respective properties and assets the Acquired Assets owned by it and to carry on its business as it is now being conductedconducted and (ii) is in good standing and is duly qualified to transact business, and is in good standing (to the extent such concept exists), in each jurisdiction in which the nature of the Assets owned or leased by it or the conduct of its business requires it to be so qualified. The Company has delivered to Purchaser prior to the date hereof true and correct copies of its Certificate of Incorporation and By-Laws (or similar organizational documents) (collectively, the "Company Organizational Documents"). The Company has no investments in, or joint venture arrangements with, any other Person (other than the Subsidiaries).
(b) Assuming that Each Subsidiary is a company duly organized, validly existing and in good standing under the representations laws of its jurisdiction of organization and warranties has the requisite corporate power and authority to own its assets and to carry on its business as now being conducted. Each Subsidiary is duly qualified to transact business, and is in good standing (to the extent such concept exists), in each jurisdiction in which the nature of the Assets owned or leased by it or the conduct of it requires it to be so qualified.
(c) The Company set forth in Section 4.1(e) are correct (and subject to receipt each of board approval as described below in this Section 5.1(b)), Purchaser its Subsidiaries has full power and authority (corporate or otherwise) to execute, deliver and perform this Agreement and all other agreements and instruments being executed, or contemplated to be executed executed, by it pursuant hereto or in connection herewith (collectively, together with this Agreement Agreement, the "Purchaser Company Transaction Documents"; the Company Transaction Documents and the Purchaser Transaction Documents may be referred to herein collectively as the "Transaction Documents") the other Transaction Documents to which Purchaser is a party). The execution, delivery and performance by Purchaser the Company of this Agreement and the other Purchaser Company Transaction Documents have been duly authorized by all necessary action (corporate or 14 14 otherwise) on the part of Purchaser (other than the approval of such matters by the board of directors of Purchaser)Company, its shareholders and its Subsidiaries. This Agreement has been duly executed and delivered by Purchaser the Company and the other Purchaser Company Transaction Documents contemplated hereby to be executed and delivered by Purchaser the Company and its Subsidiaries at the Closing will, as of the Closing Date, have been duly executed and delivered by the PurchaserCompany or its Subsidiaries, as appropriate. This Agreement constitutes, and each other Purchaser Company Transaction Document, when executed and delivered by Purchaser, the Company or a Subsidiary of the Company will constitute, the legal, valid and binding obligation of Purchaserit, enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable laws relating to bankruptcy, insolvency, fraudulent conveyance, reorganization or affecting creditors' rights generally and except to the extent that injunctive or other equitable relief is within the discretion of a court.
(cd) The execution, delivery, and performance by Purchaser the Company and its Subsidiaries of this Agreement, Agreement and the other Purchaser Company Transaction Documents, Documents and the consummation by Purchaser them of the transactions contemplated hereby and thereby, do not and will not, 8 8
(ai) violate, conflict with or result in the breach of any provision of the certificate Company Organizational Documents or the organizational documents of incorporation or by-laws any Subsidiary of Purchaser the Company or (bii) violate, conflict with, result in a breach of, or constitute a default (or an event which would, with the passage of time or the giving of notice or both, constitute a default) under, require any consent under, or result in or permit the termination, amendment, modification, acceleration, suspension, revocation or cancellation of, or result in the creation or imposition of any Lien of any nature whatsoever upon, any of the Acquired Assets or give to others any interests or rights therein under, (ix) any indentureSpecified Contract, mortgage, loan any other Contract or credit agreement, license, instrument, lease, contract, plan, permit or other agreement or commitment, oral or written, to which Purchaser is a partyany Company Approval, or (iiy) any judgment, injunction, writ, award, decree, restriction, ruling, or order of any court, arbitrator or Governmental Entity or any applicable constitution, or Law, to which Purchaser the Company or any of the Subsidiaries is subjectsubject or which is applicable to any of the Acquired Assets (any of the foregoing, except for such violations, conflicts, breaches, defaults, failures to obtain consents, terminations, modifications, accelerations, revocations and cancellations as would not individually or in the aggregate have a material adverse effect on Purchaser's ability to perform its obligations under the Purchaser Transaction Documents"Default/Modification Right").
(de) The shares SECTION 4.1(e) OF THE DISCLOSURE LETTER contains a complete and correct list of StarMedia Common Stock delivered to the Company record and beneficial ownership of all outstanding capital stock of the Company. No premerger notification under the HSR Act is required in accordance with this Agreement, when so delivered in accordance connection with the terms of this Agreement, will have been duly authorized, validly issued, fully paid and non-assessable, and will not have been issued in violation of any preemptive rights or any U.S. federal or state securities lawstransactions contemplated hereby.
Appears in 1 contract
Samples: Asset Purchase Agreement (J P Morgan Partners Sbic LLC)
INCORPORATION; AUTHORIZATION; CAPITALIZATION. (a) Purchaser The Company is a corporation duly incorporatedorganized, validly existing and in good standing under the laws of the State of DelawareCalifornia. Purchaser The Company (i) has all requisite corporate power and authority to own its respective properties and assets and to carry on its business as it is now being conductedconducted and (ii) is in good standing and is duly qualified to transact business in each jurisdiction in which the nature of property owned or leased by it or the conduct of its business requires it to be so qualified, except where the failure to be in good standing or to be duly qualified to transact business would not, individually or in the aggregate, have a Material Adverse Effect on the Company. The Company has previously delivered to Parent true and correct copies of the articles of incorporation and by-laws of the Company. The Company has no Subsidiaries. Except as set forth on Schedule 4.1(a), the Company has no investments in, or joint venture arrangements with, any other Person.
(b) Assuming that the representations and warranties of the The Company set forth in Section 4.1(e) are correct (and subject to receipt of board approval as described below in this Section 5.1(b)), Purchaser has full power and authority (corporate or otherwise) to execute, deliver and perform this Plan of Merger, the Merger Agreement and all other agreements and instruments being executed, or contemplated to be executed by it pursuant hereto or in connection herewith and therewith (collectively, together with this Agreement the "Purchaser Transaction TRANSACTION Documents"; ). Subject only to the Company Transaction Documents and receipt of the Purchaser Transaction Documents may be requisite approval of the Company's shareholders referred to herein collectively as the "Transaction Documents"in Section 8.2 hereof, (i) the other Transaction Documents to which Purchaser is a party. The execution, delivery and performance by Purchaser the Company of this Agreement and the other Purchaser Transaction Documents have Plan of Merger has been duly authorized by all necessary action (corporate or 14 14 otherwise) on the part of Purchaser the Company, and (ii) as of the Closing Date, the Merger Agreement and the other than Transaction Documents to which the approval Company is a party will be duly authorized by all necessary action (corporate or otherwise) on the part of such matters by the board of directors of Purchaser)Company. This Agreement Plan of Merger has been duly executed and delivered by Purchaser and the other Purchaser Transaction Documents contemplated hereby to be executed and delivered by Purchaser at the Closing willCompany, and, as of the Closing Date, have been the Merger Agreement and the other Transaction Documents to which the Company is a party will be duly executed and delivered by the PurchaserCompany. This Agreement constitutesAssuming due authorization, execution and each other Purchaser Transaction Documentdelivery by Parent and Newco of this Plan of Merger, when executed and delivered by Purchaser, will constitute, the this Plan of Merger is a legal, valid and binding obligation of Purchaserthe Company, enforceable against it the Company in accordance with its terms, except as such enforceability may be limited by applicable laws relating to bankruptcy, insolvency, fraudulent conveyance, reorganization or affecting creditors' rights generally and except to the extent that injunctive or other equitable relief is within the discretion of a court. As of the Closing Date, assuming due authorization, execution and delivery by Parent of this Plan of Merger and the receipt of the requisite approval of the Company's shareholders referred to in Section 8.2 hereof, the Merger Agreement and the other Transaction Documents to which the Company is a party will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as such enforceability may be limited by applicable laws relating to bankruptcy, insolvency, fraudulent conveyance, reorganization or affecting creditors' rights generally and except to the extent that injunctive or other equitable relief is within the discretion of a court.
(c) The execution, delivery, and performance by Purchaser the Company of this AgreementPlan of Merger, the Merger Agreement and the other Purchaser Transaction DocumentsDocuments to which it is a party does not, and the consummation by Purchaser the Company of the transactions contemplated hereby and thereby, do not and will not, (a) upon receipt of the requisite approval of the Company's shareholders referred to in Section 8.2, violate, conflict with or result in the breach of any provision of the certificate Articles of incorporation Incorporation or by-laws of Purchaser the Company or (b) violate, conflict with, result in a breach of, or constitute a default (or an event which would, with the passage of time or the giving of notice or both, constitute a default) under, require any consent under, or result in or permit the termination, amendment, modification, acceleration, suspensionsuspensions, revocation or cancellation of, or result in the creation or imposition of any Lien of any nature whatsoever upon any of the assets of the Company or give to others any interests or rights therein under (i) any indenture, mortgage, loan or credit agreement, license, instrument, lease, contract, plan, permit or other agreement or commitment, oral or written, to which Purchaser is a partyContract, or (ii) any judgment, injunction, writ, award, decree, restriction, ruling, or order of any court, arbitrator or other Governmental Entity or any applicable constitution, constitution or Law, to which Purchaser the Company is subject, except for such violations, conflicts, breaches, defaults, failures subject or which is applicable to obtain consents, terminations, modifications, accelerations, revocations and cancellations as would not individually or in the aggregate have a material adverse effect on PurchaserCompany's ability to perform its obligations under the Purchaser Transaction Documentsassets.
(d) The authorized capital stock of the Company consists of (i) 10,000,000 shares of StarMedia Webcast Common Stock delivered to Stock, of which 7,237,500 shares are issued and outstanding, and (ii) 560,000 shares of Series A preferred stock, no par value, of the Company in accordance with this Agreement(the "PREFERRED STOCK"), when so delivered in accordance with of which 541,650 shares are issued and outstanding. All of the terms outstanding shares of this Agreement, will capital stock of the Company have been duly authorized, validly issued, are fully paid and non-assessable, and will have not have been issued in violation of any preemptive rights created by statute, regulation, the articles of incorporation or bylaws of the Company or any U.S. agreement to which the Company is a party or by which it is bound, or in violation of any federal or state securities laws. The Company has reserved 541,650 shares of Webcast Common Stock for issuance upon conversion of the Preferred Stock and 1,100,000 shares of Webcast Common Stock under the Company's 1999 Stock Option Plan (the "OPTION PLAN") for employees, officers, directors and consultants of the Company as may be determined and approved by the Company's Board of Directors from time to time. Except as disclosed in this Section 4.1(d) and in Schedule 4.1(d) and for the transactions contemplated by this Plan of Merger, there is no security, option, warrant, right (including preemptive rights), put, call, subscription, agreement, commitment, understanding or claim of any nature whatsoever, fixed or contingent, to which the Company is a party or by which it is bound that directly or indirectly (i) calls for the issuance, sale, pledge, delivery or other disposition of any securities of the Company or any securities convertible into, or other rights to acquire, any securities of the Company, (ii) relates to the voting or control of any securities of the Company or (iii) obligates the Company or any of its Affiliates to grant, offer or enter into any of the foregoing.
(e) Schedule 4.1(e) contains a complete and correct list of the record and beneficial ownership of Webcast Common Stock and Preferred Stock by each shareholder of the Company designating each officer and director of the Company and the current mailing address of each such shareholder.
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INCORPORATION; AUTHORIZATION; CAPITALIZATION. (a) Purchaser is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. Purchaser has all requisite corporate power and authority to own its respective properties and assets and to carry on its business as it is now being conducted.
(b) Assuming that the representations and warranties of the Company set forth in Section 4.1(e) are correct (and subject to receipt of board approval as described below in this Section 5.1(b)), Purchaser has full power and authority (corporate or otherwise) to execute, deliver and perform this Agreement and all other agreements and instruments being executed, or contemplated to be executed by it pursuant hereto or in connection herewith (collectively, together with this Agreement the "Purchaser Transaction Documents"; the Company Transaction Documents and the Purchaser Transaction Documents may be referred to herein collectively as the "Transaction Documents") the other Transaction Documents to which Purchaser is a party. The execution, delivery and performance by Purchaser of this Agreement and the other Purchaser Transaction Documents to which Purchaser is a party have been duly authorized by all necessary action (corporate or 14 14 otherwise) on the part of Purchaser (other than the approval of such matters by the board of directors of Purchaser). This Agreement has been duly executed and delivered by Purchaser and the other Purchaser Transaction Documents contemplated hereby to be executed and delivered by Purchaser at the Closing willand, as of the Closing Date, have been the other Transaction Documents to which Purchaser is a party will be duly executed and delivered by the Purchaser. This Agreement constitutes, and each other Transaction Document to which Purchaser Transaction Documentis a party, when executed and delivered by Purchaser, will constitute, the a legal, valid and binding obligation of Purchaser, enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable laws relating to bankruptcy, insolvency, fraudulent conveyance, reorganization or affecting creditors' rights generally and except to the extent that injunctive or other equitable relief is within the discretion of a court.
(c) The execution, delivery, and performance by Purchaser of this Agreement, and the other Transaction Documents to which Purchaser Transaction Documentsis a party do not, and the consummation by Purchaser of the transactions contemplated hereby and thereby, do not and will not, (ai) violate, conflict with or result in the breach of any provision of the certificate of incorporation or by-laws of Purchaser or (bii) violate, conflict with, result in a breach of, or constitute a default (or an event which would, with the passage of time or the giving of notice or both, constitute a default) under, require any consent under, or result in or permit the termination, amendment, modification, acceleration, suspension, revocation or cancellation of, (i1) any indenture, mortgage, loan or credit agreement, license, instrument, lease, contract, plan, permit or other agreement or commitment, oral or written, to which Purchaser is a party, or (ii2) any judgment, injunction, writ, award, decree, restriction, ruling, or order of any court, arbitrator or Governmental Entity or any applicable constitution, or Law, to which Purchaser is subject, except for such violations, conflicts, breaches, defaults, failures to obtain consents, terminations, amendments, modifications, accelerations, suspensions, revocations and cancellations as would not individually or in the aggregate have a material adverse effect on Purchaser's ability to perform its obligations under the Purchaser Transaction Documentsthis Agreement.
(d) The shares of StarMedia Common Stock to be delivered to the Company Stockholders in accordance with this Agreement, when so delivered in accordance with the terms of this Agreement, will have been duly authorized, validly issued, fully paid and non-assessable, and, assuming that the representations and warranties of the Stockholders set forth in Section 4.6 are correct, will not have been issued in violation of any preemptive rights or any U.S. federal or state securities laws.
(e) Purchaser is acquiring the Company Shares pursuant to this Agreement for Purchaser's own account and not with a view to any distributions in violation of any U.S. federal or state securities laws.
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